The rule of law: into battle over executive power

By Michael Skapinker

On Friday June 24 2016, those in the UK who had been able to sleep woke up to the news that their fellow citizens had voted to leave the EU.

By the Sunday evening, Mishcon de Reya, the London-based law firm, was preparing to warn the then prime minister David Cameron against an immediate triggering of Article 50, the treaty provision that takes a member state out of the EU.

Mishcon was not the first choice to take on the case. People who were concerned the government would use the royal prerogative to trigger Article 50, rather than asking parliament, approached several solicitors’ firms that weekend. They all refused to take the case, either because they represented the government on other matters or because they did not want the adverse publicity.

Mishcon decided it was up for the fight. James Libson, Mishcon’s executive partner, recalls that Mr Cameron was shortly to travel to Brussels and some worried that his mere presence there would be sufficient to trigger Article 50. By Monday, the firm realised it needed to act.

“So we wrote to the government that morning to say ‘don’t trigger Article 50 because we don’t think you can. It’s beyond your powers to do so without the mandate of parliament’,” says Mr Libson. “In the end, Mr Cameron made a statement to the Commons — I think not because of our letter, I’d love to take credit for it but not because of our letter — to say that he wouldn’t be triggering Article 50 on his visit to Brussels that day.”

Mishcon wanted to ensure parliament played its role. But it had a problem. The two clients on whose behalf it had written the letter did not want to be named. The firm needed a named plaintiff.

That evening, Gina Miller, a campaigner for transparency in financial services, visited the firm’s offices to talk about lack of diversity in the City. The chat afterwards inevitably turned to the referendum — she had campaigned for Remain — and fears of the government sidelining parliament.

Mishcon invited her to a meeting. “My simple question was: what happens if someone, a litigant, isn’t named?” recalls Ms Miller. “They said the case would fall. I felt I had no other choice, because this was so important. So I stepped up and said I would be named.”

The result was one of the most significant constitutional law cases in UK history. The Supreme Court held that parliament had to approve the triggering of Article 50. The consequences for Ms Miller were vast. She suffered sexist and racist abuse. She was told that, as an incomer from Guyana, she was not British enough to interfere. A man was jailed after offering “£5,000 for the first person to ‘accidentally’ run over this bloody troublesome first-generation immigrant”.

Ms Miller sits upright and composed alongside Mr Libson in a Mishcon meeting room, her hands together in her lap. He has done big cases before. He was a leading figure in the legal team that successfully defended Penguin Books and the author Deborah Lipstadt when David Irving sued them for defamation. The court found Irving was a Holocaust denier, anti-Semite and racist. Denial, a recent film about the case, starred Rachel Weisz as Lipstadt and Jack Lowden as Mr Libson.

A litigator who describes his practice as “reputational work, a lot of business disputes and big arbitrations”, Mr Libson is not principally a constitutional lawyer. Why did he take on the case? “If you’re interested in law, you’re interested in the constitution,” he says. Unlike at the bar, solicitors do not generally specialise in constitutional law. “I don’t think there would be a firm that had a constitutional unit that was ready and saying ‘I wished you’d come to us’.”

Ultimately, parliament tamely authorised prime minister Theresa May to trigger Article 50. “But that wasn’t the point,” Ms Miller says. “The point was ensuring that the government were not putting themselves above the law and bypassing parliament, and that’s what the case confirmed and ensured . . . that a future prime minister and executive could not bypass parliament and take away people’s rights, so that’s why it’s such a landmark case. What it has done is preserved the sovereignty of parliament and preserved our constitution.”

But even without the Article 50 judgment, wouldn’t parliament still have had its say, as it is doing now with its scrutiny of the withdrawal bill transposing EU into UK law?

“Yes, but that’s a bit-by-bit process,” Mr Libson says. It does not affect the fundamental consequence of triggering Article 50, which is that rights conferred on people by the European Communities Act of 1972, which took the country into the EU, were being altered. “Rights conferred by parliament could only be removed by parliament.” That is what the Miller case confirmed, he says.

In spite of the abuse she continues to suffer, Ms Miller says she speaks at schools and universities and young people are fascinated by the case. “Some of the cross-examinations and questions I get are much better than most journalists’.”

Mr Libson says the Supreme Court judgment has wider significance for the rule of law everywhere. “Gina’s case is a canary in the coal mine, along with other cases that are going along around the world where we see this massive extension of executive power. We see it with Trump’s executive orders in America, we see it with Erdogan in Turkey, we see it with what Netanyahu’s trying to do with the Supreme Court in Israel,” he says.

“People standing up and exercising their democratic rights through an independent court system is something I hope we’ll see more of around the world.”